1. The author of the communication (initial letter dated 7 December
1981 and further letters dated 26 June 1982, 27 February 1983, 10 June
1983, 13, 14, 19 and 20 June 1984, 9 December 1984, 6 and 30 January 1985,
8 and 14 February 1985 and 27 May 1985), Y. L., is a Canadian citizen,
living at present in Cowansville, Province of Quebec, Canada, alleging
that he is a victim of a breach by Canada of articles 14, paragraph 1,
and 26 of the International Covenant on Civil and Political Rights. The
main facts underlying the author's claims are as follows:

2.1. On I July 1967, at the age of 36, the author was dismissed from
the Canadian Army after 19 years of service. The competent authorities
alleged that he suffered from mental disorders. Requests by the author
for more specific information about the medical diagnosis were repeatedly
declined by the Army.

2.2. Even before he had been officially discharged, the author . applied
for "disability" pension. The Canadian Pension Commission rejected
this request by a decision of 17 July 1967. The Commission held that the
author's disability neither arose out of, nor was directly connected with,
his military service, as required by the Pension Act (1952). On appeal,
this decision was confirmed on 31 March 1969.

2.3. After the Pension Act was amended in 1971, the author renewed his
request for a pension. Again, he was unsuccessful. Two consecutive applications
to the Canadian Pension Commission were rejected. As a next step in the
proceedings, the author applied to an Entitlement Board of the Commission,
which, on 9 November 1977, also gave a negative decision. Finally, the
author appealed to the Pension Review Board, which, after a hearing on
10 July 1979, confirmed the earlier rulings in its decision of 15 August
1979. The author, who had been represented before the Pension Review Board
by Maitre R. A. Pinsonnault, c.r., a member of the Bureau of Pensions Advocates
(a government agency made up of civil servants), was not provided with
a copy of the Board's decision. Instead, as the State party explained,
a copy was transmitted to his lawyer with the indication that it was up
to him to decide whether he should show the text to his client. The author
did not receive the full text of the decision until January 1983.

2.4. Since the author had never had access to his medical records, he
asked to be provided with all relevant information after his appeal had
been definitively rejected. On 7 December 1979, 270 pages of documents
were sent to him. However, the relevant medical information had been excluded.
Some elements of the medical file were later made available to the author
in January 1983, after he had submitted the communication to the Human
Rights Committee. To date, however, the author has not had the opportunity
to see his medical dossier in its entirety. All his applications to that
effect were unsuccessful.

3.1. The author now challenges the proceedings that took place before
the Pension Review Board as violating guarantees under article 14, paragraph
1, of the Covenant. He maintains that for several reasons he was not grantees
"a fair public hearing by a competent, independent and impartial tribunal"
in the sense contemplated by that provision. He claims that, first of all,
he should have been informed in detail of the exact nature of the mental
disease from which he was alleged to be suffering. In addition, he states
that he was not allowed to attend the hearing before the Board. His lawyer,
who had been appointed and paid by the Canadian Government, also refused
to discuss fully with the author the medical aspects of the case. Finally,
the author asserts that the Board does not qualify as an independent and
impartial tribune I since it is made up of civil servants of the executive
branch of government.

3.2. The author claims that the refusal to grant him access to his medical
file amounts to a violation of article 26 of the Covenant.

4. The Canadian Government requests that the communication be declared
inadmissible. As far as the proceedings before the Pension Review Board
are concerned, it contends primarily that the complaints of the author
are outside the scope of application of the Covenant ratione materiae
because those proceedings did not constitute a "suit at law"
as envisaged under article 14, paragraph 1, of the Covenant. In addition,
and also with regard to the alleged violation of a right to access to the
complete personal dossier, it claims that domestic remedies have not been
exhausted. It states that the decision of the Pension Review Board could
have been challenged before the Federal Court of Appeal, under article
28 (1) of the Federal Court Act. Finally the Government rejects as unfounded
the author's objections to the proceedings before the Pension Review Board.

5. The Working Group of the Human Rights Committee, meeting during the
Committee's twenty-third session on 9 November 1984, considered that, despite
the detailed information provided by the author and by the State party,
the Committee did not yet have at its disposal all the legal and factual
elements required for its decision on the admissibility of the communication.
In particular, it considered that the decision might require a finding
as to whether the claim which the author pursued, in the last instance
before the Pension Review Board vas a "suit at law" within the
meaning of article 14 paragraph 1, of the Covenant. The Working Group of
the Committee therefore requested the author and the State party to respond
to the best of their abilities, to the following questions:

(a) How does Canadian domestic law classify the relationship between
a member of the Army and the Canadian State? Are the rightsand
obligations deriving from such a relationship considered to becivil
rights and obligations or rights and obligations under public law?

(b)Are there different categories of civil servants? Does Canadamake a distinction between a statutory regime (under public law) anda contractual regime (under civil law)?

(c) Is there a distinction, in Canadian domestic law, between persons
employed by private employers under a labour contract and persons employed
by the Government?

(iii) Do decisions rendered by the Pension Review Board explicitly
mention that they may be challenged before theFederal Court of
Appeal?

(i v) Did the decision of the Pension Review Board of 15 August1979 in the present case contain such an indication?

(v) Did the counsel appointed by the Government of Canadato
protect the author's interests know that the remedy provided for in article
28 (1) of the Federal Court Act could beresorted to in the proceedings
under consideration?

6.1. In its submission of 22 January 1985, in reply to the Committee's
interim decision, the State party explained that within the Canadian legal
system the relationship between a member of the armed forces and the Crown
was classified as a matter of public law. Soldiers were placed under a
statutory regimeas opposed to a contractual arrangement. This meant,
interalia, that members of the armed forces could not recover
their pay through the ordinary courts.

6.2. In regard to the actual exercise of the remedy ranted under article
28 (1) of the Federal Court Act, the State party points out that, since
1970, 10 decisions of the Pension Review Board have been the subject of
applications for review. Six of those appeals had been referred to the
Federal Court of Appeal in 1984 and were still pending, but in one case
(War Amputations ofCanada v. Pension Review Board [1975]
C.F. 447) a decision had been handed down in 1975.

6.3. In addition, the State party states that Maitre R. A. Pinsonnault,
c.r., who was representing the author in the proceedings before the Pension
Review Board, was well aware of the remedy under article 28 (1) of the
Federal Court Act. As to the reason why Maitre Pinsonnault had not suggested
that the author avail himself of that remedy, the State party points out
that the members of the Bureau of Pensions Advocates are not entitled to
represent parties before the Federal Court of Appeal.

7.1. Responding to the interim decision of the Committee, the author
transmitted a letter from the National Defense Headquarters, dated 7 February
1985, in which it was indicated that the rights and obligations of the
members of the armed forces "relate to public law as opposed to private
civil law".

7.2. Concerning the remedy provided for under article 28 (1) of the
Federal Court Act, the author furnished the Committee with the letter dated
15 August 1979, by which the Pension Review Board itself informed him of
the outcome of the proceedings before that body. As to the legal force
of the decision of 15 August 1979 and as to available remedies,
the letter contained a paragraph which read as follows:

It is to be noted that the decisions of the Board are final and enforceable
for the purposes of the Pension Act. However, the Pension Review Board
may, if new facts are brought to its attention or if it discovers an error
in the exposition of the facts or in the interpretation of a rule of law,
quash or amend that decision.

7.3. in letters which the author received from Maitre Pinsonnault (dated
22 August 1979) and which his lawyers received from the Chief Pension Advocate
of the Bureau of Pensions Advocates (dated 17 September 1979) after the
final decision of Pension Review Board, no mention was made of the possibility
of an appeal to the Federal Court of Appeal. Both of these letters confined
themselves to discussing the possibilities of reopening the proceedings
before the Pension Review Board.

8. Before considering the merits of any claim contained in a communication,
the Human Rights Committee must determine whether the communication is
admissible under the Optional Protocol to the Covenant.

9. 1. With regard to the alleged violation of the guarantees of "a
fair and public hearing by a competent, independent and impartial tribunal
established by law", contained in article 14, paragraph 1, of the
Covenant, it is correct to state that those guarantees are limited to criminal
proceedings and to any "suit at law". The latter expression is
formulated differently in the various language texts of the Covenant and
each and every one of those texts is, under article 53, equally authentic.

9.2. The travaux preparatoires do not resolve the apparent discrepancy
in the various language texts. In the view of the Committee, the concept
of a suit at law" or its equivalent in the other language texts is
based on the nature of the right in question rather than on the status
of one of the parties (governmental, parastatal or autonomous statutory
entities), or else on the particular forum in which individual legal systems
may provide that the right in question is to be adjudicated upon, especially
in common law systems where there is no inherent difference between public
law and private law, and where the courts normally exercise control over
the proceedings either at first instance or on appeal specifically provided
by statute or else by way of judicial review. In this regard, each communication
must be examined in the light of its particular features.

9.3. In the present communication, the right to a fair hearing in relation
to the claim for a pension by the author must be looked at globally, irrespective
o@ the different steps which the author had to take in order to have his
claim for a pension finally adjudicated.

9.4. The Committee notes that the author pursued his claim successively
before the Canadian Pension Commission, an Entitlement Board of the Commission
and, finally, the Pension Review Board. It is clear from the observations
made by the State party on the author's communication that the Canadian
legal system subjects the proceedings in those various bodies to judicial
supervision and control, because the Federal Court Act does provide the
possibility of judicial review in unsuccessful claims of this nature. It
would be hazardous to speculate on whether that Court would or would not
have, first, quashed the decision of the Board on the grounds advanced
by the author and, secondly, directed the Board to give the author a fair
hearing on his claim. The fact that the author was not advised that he
could have resorted to judicial review is irrelevant in determining the
question whether the claim of the author was of a kind subject to judicial
supervision and control. It has not been claimed by the author that this
remedy would not have complied with the guarantees provided in article
14, paragraph 1, of the Covenant. Nor has he claimed that this remedy would
not have availed in correcting whatever deficiencies may have marked the
hearing of his case before the lower jurisdictions, including any grievance
that he may have had regarding the denial of access to his medical file.

9.5. In the view of the Committee, therefore, it would appear that the
Canadian legal system does contain provisions in the Federal Court Act
to ensure to the author the right to a fair hearing in the situation. Consequently,
his basic allegations do not reveal the possibility of any breach of the
Covenant.

10. The Committee, therefore, concludes that the author has no claim
under article 2 of the Optional Protocol and decides:

1. We concur in the view expressed by the majority of the Committee
that the communication is inadmissible. But we do not share the reasons
on which that view is based.

2. The majority view stresses in paragraph 9.4 that the Canadian legal
system, in accordance with article 14, paragraph 1, of the Covenant, provides
sufficient protection for a claim of the kind pursued by the author, because
an appeal could be made to the Federal Court of Appeal. However, the availability
of this legal remedy cannot be held against the author. In the letter by
which the Pension Review Board informed the author of its decision as being
final and enforceable, no mention was made of the possibility of such an
appeal to a judicial body. Moreover, the lawyers who acted for the author
and who are civil servants specifically appointed to represent claimants
before the Pension Review Board did not advise the author accordingly.
Under these circumstances, Canada is estopped from asserting that either,
procedurally, the author has failed to exhaust local remedies or that,
substantively, the requisite guarantees under article 14, paragraph 1,
of the Covenant have been complied with.

3. However, the dispute between the author and Canada does not come
within the purview of article 14, paragraph 1, of the Covenant.

The guarantees therein contained apply to the determination both of
any criminal charge and of rights and obligations in a suit at law. Whereas
this phrase in its English and Russian versions refers to proceedings,
the French and the Spanish texts rely on the nature of the right or obligation
which constitutes the subject-matter of the proceedings concerned. In the
circumstances of the present case, there is no need to clarify the common
meaning to be given to the different terms used in the various languages
which, under article 53 of the Covenant, are equally authentic. It is quite
clear from the submissions of both the State party and the author that
in Canada the relationship between a soldier, whether in active service
or retired, and the Crown has many specific features, differing essentially
from a labour contract under Canadian law. In addition, it has emerged
that the Pension Review Board is an administrative body functioning within
the executive branch of the Government of Canada, lacking the quality of
a court. Thus, in the present case, neither of the two criteria which would
appear to determine conjunctively the scope of article 14, paragraph 1,
of the Covenant is met. It must be concluded, therefore, that proceedings
before the Pension Review Board, initiated with a view to claiming pension
rights, cannot be challenged by contending that the requirements of a fair
hearing as laid downin article 14, paragraph 1, of the Covenant
have been violated,

Bernhard Graefrath

Fausto Pocar

Christian Tomuschat

The text of an
individual opinion submitted by Committee members Bernhard Graefrath, Fausto
Pocar and Christian Tomuschat is appended to the present decision.